47 USC 230 Preempts State Criminal Law–Voicenet Communications v. Corbett

By Eric Goldman

Voicenet Communications, Inc. v. Corbett, 2006 WL 2506318 (E.D. Pa. Aug 30, 2006)

Does 47 USC 230 preempt state criminal laws that otherwise meet its statutory requirements? For a decade, we’ve thought the answer was yes, but no court had said so explicitly. This ruling confirms our understanding.

42 USC 1983 creates a cause of action when the government (and others) deprives individuals of their civil rights. In this case, Usenet service providers and Internet access providers sued Pennsylvania law enforcement officials under 1983. My understanding is that law enforcement agencies targeted these service providers as part of an anti-child porn effort brought under state anti-child porn laws. The law enforcement officials obtained and executed a search warrant against the service providers for distributing child porn (presumably via USENET groups), but the law enforcement officials apparently never alleged that the service providers did anything more than carry the USENET groups (as opposed to, say, uploading or downloading the illegal images). Thus, the service providers claim that the government deprived them of their civil rights by targeting them for distributing child porn when 47 USC 230 preempted their legal liability.

This raises the important question: does 230 preempt an intermediary’s liability under state criminal laws based on third party content/actions? The statute clearly does not preempt federal criminal liability, but inferentially, it plainly seems to preempt state criminal liability. However, as far as I can recall, no court had ever said so directly. This court fills that hole, expressly saying that 230 preempts liability under state criminal laws for user content/actions. So, in this case, the service providers cannot be criminally liable for state anti-child porn laws based on carrying other people’s content.

Due to the intricacies of 1983 law, however, the service providers are not entitled to damages under 1983 (something about no damages when the 1983-protected right isn’t clearly established). However, the service providers may be entitled in injunctive relief under 1983.